"Capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution." (1)
American legal jurisprudence has long espoused the principle that "death is different" and our courts have limited the imposition of the death penalty to a narrow category of the most serious crimes and blameworthy offenders. (2) Accordingly, in June of 2002, the United States Supreme Court banned the execution of individuals with mental retardation in the landmark case of Atkins v. Virginia. (3) Three years later, in March of 2005, the Court excluded another category of defendants from the death penalty when it held it unconstitutional to execute individuals who were juveniles at the time of their crime. (4) Both holdings examined the moral culpability of the groups of individuals in question and determined not only that they lacked the level of culpability required for the death penalty, but also that their execution neither furthered the penological purposes of the death penalty nor conformed to our evolving standards of decency. (5)
Both cases stirred debate as to whether these rulings should be expanded to exempt other individuals from the death penalty as well, including those with brain injuries. The latter is a timely and important issue, with 1.4 million traumatic brain injuries occurring in the United States every year. (6) Of those, most will recover substantially or fully. (7) But for a small portion of the population, a traumatic brain injury will result in permanent cognitive, physical, emotional, and behavioral disabilities that will greatly impact their lives. (8)
As will be discussed, brain damage, and particularly frontal lobe damage, has long been recognized as a causal factor in violent crime, so individuals who suffer brain injuries are at a higher risk to commit violent crime, and consequently at a higher risk to face the death penalty. (9) However, the disabilities suffered by individuals with a brain injury may be in many respects very similar to those experienced by individuals with mental retardation or may cause the individuals to behave more like juveniles than like adults. If the death penalty is considered too excessive a punishment for these two groups of individuals, certain persons with severe brain damage should also be exempt from the death penalty under the rationale employed in Atkins and Roper.
The expansion of these rulings to also encompass certain brain-injured individuals, however, brings with it a host of other issues and concerns. Questions arise about where to draw the line between mild and severe brain damage when the death penalty can not be imposed, how to properly diagnose such individuals, and how to detect when individuals are malingering this brain damage.
This article attempts to analyze such issues and proposes an initial analytical approach for resolving them. Besides the fact that it affects such a large number of people, this issue is important from a human rights and a constitutional law perspective, as well. Execution of persons who lack moral culpability not only violates the Eight Amendment ban on "cruel and unusual punishment," but is also degrading to human dignity as "[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man." (10)
II. Atkins v. Virginia
In Atkins v. Virginia, the United States Supreme Court held that the execution of people with mental retardation violates the Eighth Amendment's ban on cruel and unusual punishment. (11) While mentally retarded persons often know the difference between right and wrong, and are usually found to be competent to stand trial, the Court stated that, "because of their disabilities in areas of reasoning, judgment, and control of their impulses," they do not act with the level of moral culpability that warrants imposing the death penalty. …